THE FOOD STANDARD ACT IS CONSTITUTIONALLY VALID

It is humbly submitted that the Act passed by the state does not violate any Fundamental Right.

That the Act is not violative of the fundamental right as established in the following

submissions:

A. THE ACT DOES NOT VIOLATE THE RIGHT OF THE APPELLANT UNDER ART. 14

It is humbly submitted that the principle underlying guarantee of Art. 14 is not that the same

rules of law should be applicable to all persons within the Indian Territory or that the same

remedies should be made available to them irrespective of differences of circumstances. 1 It

only means that all persons similarly circumstanced shall be treated alike both in privileges

conferred and liabilities imposed.2 Equal laws would have to be applied to all in the same

situation, and there should be no discrimination between one person and another if as regards

the subject-matter of the legislation their position is substantially the same. 3 It does not mean

that legislative classification should be scientifically perfect or logically complete.4

1. THE CLASSIFICATION IS BASED ON INTELLIGIBLE DIFFERENTIA

Art. 14 permits reasonable classification for the purpose of disposition.5 The classification must

be rational, that is to say, it must be based on some qualities or characteristics which are to be

found in all the persons grouped together and not in others who are left out. The condition that

the classification must be founded on an intelligible differentia which distinguishes those that

are grouped together must be fulfilled.6 The subject matter of legislation should be a well-

1
Chiranjit Lal Choudhuri v Union of India, 1950 SCR 869; B. Krishna Murthi v. State of
Andhra Pradesh, 2005 (2) ALT 342.
2
Shashikant Laxman Kale and Anr. v. Union of India, 1990 AIR 2114.
3
D.S. Nakara & Others v. Union of India, 1983 SCR (2) 165
4
Dharam Dutt v. Union of India, (2004) 1 SCC 712.
5
S.K. Chakraborty v. Union of India, (1988) 3 SCC 575.
6
Special Courts Bill, 1978, In re, (1979) 2 SCR 476
defined class founded on an intelligible differentia which distinguishes that subject matter from

the others left out.7 In other words, equals must be treated alike in like circumstances and

conditions8 and such classification is based in legal and relevant consideration.9

The council humbly submits that there is intelligible differentia behind the specific

categorization of the food that is done in the present case. Junk food can be better understood

as any food, which is low in essential nutrients and high in everything elsein particular

calories and sodium. Junk foods contain little or no proteins, vitamins or minerals but are rich

in salt, sugar, fats and are high in energy (calories). Highly salted like chips, high in refined

carbohydrates (empty calories) like candy, soft drinks and high in saturated fats like cake and

chocolates.10 The honorable Delhi High Court in the Junk Food Judgement11stated that there

is no need to define the term junk food as such as it is a colloquial term, and said that these

food items are understood to be food that have been categorized under the category of H.S.F.F

which is Food items high in sugar fat and salt content.

This definition is used by the honorable Delhi High Court in defining all the various kind of

food items that were supposed to banned from being sold 500m around school campuses, and

was borrowed from the UK Food Standards Agency (FSA) extensive nutrient profiling of

foods. The Australian government also uses the same term to define food that are high in sugar

and salt content and are generally spoken off as junk food. The judgment included all kind

of food that are considered dangerous for consumption for school kids. Hence, the council

would like to humbly submit that the classification done in the present matter is an apt one and

that there exists an intelligible differentia behind the classification.

7
Dharam Dutt v. Union of India, (2004) 1 SCC 712.
8
Parvej Aktar v. Union of India, (1993) 2 SCC 221.
9
U.P. Power Corpn. Ltd v. Ayodhya Prasad Mishra, (2008) 10 SCC 139.
10
Dietary Guidelines for Indians, 2011, National Institute of Nutrition (NIN).
11
Uday Foundation for Congenital Defects and Rare Blood groups v. Union of India,Writ
Petition No. 8568/2010
 2. THERE IS A NEXUS BETWEEN THE CLASSIFICATION DONE BY THE ACT AND THE

OBJECTIVE THAT IS SOUGHT TO BE ACHIEVED BY THE SAID CLASSIFICATION.

The council would like to humbly submit that there is reasonable nexus between the

classification done by the Act and the object that is sought to be achieved by it. The country of

Modus at the moment is facing a Gargantuan issue of obesity among its youth. One of the

primary reasons behind obesity is the easy availability of junk food to the youth. Junk food has

high level of fat and sugar that are not only unhealthy but addictive which creates a vicious

cycle making it hard for children to choose healthy food.12 Junk food intake leads to higher

proportion of calories being derived from total and saturated fat.13A study published in science

journal PLOS in February 2011, which examined the prevalence of overweight and obesity

among urban Indian adolescents in New Delhi, has shown that while one in five adults is obese,

about 20 per cent of children are either already obese or overweight.14

Regular consumption of junk food leads to metabolic changes and conditions such as

becoming overweight, high blood pressure, and raised blood glucose and cholesterol.15 Studies

have established the link between consumption of junk food and obesity. 16 From the various

research cited above, the council would like to humbly bring home the fact that there is a threat

from Junk Food to the health of the nation's youth and hence by banning sale of junk food

12
Asgary.S, Nazari.B, Sarrafzadegan.N, Parkhideh.S, Saberi.S, Esmaillzadeh.A, et al.
Evaluation of fatty acidcontent of some Iranian fast foods with emphasis on trans fatty
acids., Asia Pac J ClinNutr 2009; 18: 187-92
13
Schmidt. M, Affenito. SG, Streigl-Moore. R, Khoury. PR, Barton. B, Crawford. P, et al.
Fast food intake and diet quality in black and white girls ,Arch Pediatric Adolescent Med.
2005;159:626-31. 15
14
Deepak Kumar Gupta et al. Secular Trends in Prevalence of Overweight and Obesity from
2006 to 2009 inUrban Asian Indian Adolescents Aged 14-17 Years. PLOS One, 2011
15
World Health Organization, 2010, Global status report on non-communicable diseases
16
Datar. A., & Nicosia N. (2012). Junk Food in Schools and Childhood Obesity. Journal of
Policy Analysis and Management: [the Journal of the Association for Public Policy Analysis
and Management], 31(2), 312337.
inside university campus the state is trying to reduce consumption of junk food among the

youth of the state.

The council would also like to humbly submit that various other states in the country and

various other countries in different instance too have banned the sale of junk food inside

University Campuses which in- turn lead to reduced consumption of junk food among the

youth. The elementary schools in Arizona, Georgia, Kentucky, Louisiana, Maryland,

Mississippi, Nebraska, New Jersey, New York, and West Virginia have banned the sale of junk

food in schools.17 The Punjab government has banned junk food in and around schools due

to similar reasons.18

Hence, the council would like to humbly submit that there is reasonable nexus between the

object sought to be achieved by the Act and the classification done by it, as has been established

by examples above, that junk easy availability of junk food is injurious to the students of the

state and the ban on its sale inside university campus would help in cutting down its

consumption.

B. THE ACT DOES NOT VIOLATE FUNDAMENTAL RIGHT GURANTEED UNDER ART.19

AND ART. 21

It is humbly submitted before the Honble Court that Art. 19(1)(g) grants a fundamental right

to practice any profession or to carry on any occupation, trade or business. The restrictions

that can imposed on the Right to Freedom of Trade have been stated in Art. 19(2) to 19(6).

Therefore the restriction if any imposed by the Government in the present case falls within the

ambit of reasonable restrictions as enmarked between Art. 19 (2) to 19 (6).

17
Massachusetts Schools: Junk Food Banned, The Huffington Post, Posted: 15th July 2011.
18
Junk Food Lurking In Schools & Colleges: Need To Be Banned, The lawmantra Journal, Vol
3, Issue 5.
 1. THERE IS NO FUNDAMENTAL RIGHT TO TRADE IN JUNK FOOD

Business in Junk food is Res extra commercium. It means, a thing which by law is excluded

from the sphere of private transaction: thing not subject to commerce or trade; things which

cannot be bought or sold.The expression means outside the commerce. The doctrine was

applied by the Supreme Court , in a number subsequent cases, to hold that there is no

fundamental right to trade in the business of a substance of deleterious nature, or to deal in

adulterated foodstuff. 19 The Indian Penal Code contains provisions for punishment to anyone

who sales noxious food or drink.

Res extra commercium is a doctrine introduced by Chief Justice Das of the Supreme Court in

the case, State of Bombay v. R.M.D. Chamarbaugwala,20 which has the effect of constricting

the scope of fundamental rights by rendering as constitutional outcasts certain purportedly

immoral or noxious activities. It does this by blocking these activities from falling within

the purview of the protection of fundamental rights. Hence it is humbly submitted that there

exists no fundamental right to trade in Junk Food.

2. THE RIGHT PROVIDED UNDER ARTICLE 19 IS NOT ABSOLUTE

The fundamental right of a citizen to carry on any occupation, trade or business under Art 19(1)

(g) of the Constitution of India is not absolute; it is subject to reasonable restrictions which

may be imposed by the State in the interests of general public.21 The authorities, or private

persons or industry are bound by the direction contained in Part IV, Part III and Preamble of

the Constitution of India. The right to carry on trade is subject to directions contained in the

Constitution, the Universal Declaration of Human Rights, European Convention of Social,

Economic and Cultural Rights and the Convention on Right to Development for Socio-

Economic justice. Social security is a facet of Socio-Economic justice to the people and means

19
State of U.P. v. Union of India, AIR 1957 SC 628(631).
20
State of Bombay v. R.M.D. Chamarbaugwala, AIR 1957 SC 699.
21
Ramchand v. Union of India, AIR 1963 SC 563 (566).
of livelihood.22 Cl. (6) of Article 19 authorizes the State to impose reasonable restrictions

upon the freedom of trade, business, occupation or profession.23 The object of imposing

restrictions under Clause (6) is to strike a balance between individual freedom and social

control.24 Government order issued in public interest overrides individual interest and the

question of public interest must be considered not from the point of view of interest of the

person on whom the restriction is imposed, even if the restriction operates on him harshly.25

3. BANNING OF JUNK FOOD IS A REASONABLE RESTRICTION UNDER THE PROVISIONS

OF ART. 19(2) - 19(6) OF THE CONSTITUTION.

Banning of junk food is a reasonable restriction as it is in the interest of general public. As

the Interest of general public is a comprehensive expression comprising any matter which

affects public welfare, or public convenience,26 e.g. public order, health, morality,27 of the

country as well as the implementation of Directive Principles in Part IV.28 Hence under this

power the State may impose restrictions, requiring that a beverage must contain a maximum

percent of fruit juice. 29Any business or trade irrespective of its nature is liable to be controlled

or restricted by the State, if it is necessary in the interests of the general public, such as public

order, morality, health or the like, provided such restrictions are not unreasonable.30 The mere

fact that the regulation of a trade would cause hardship to or result in the elimination of a

section of traders would render the regulation unreasonable,31 for control or regulation of any

kind is bound to cause hardship that are unable to satisfy the requirements of the regulatory

22
LIC of India v. Consumer Education Research Centre, AIR 1995 SC 1811.
23
Article 19(6) (i) & (ii), The Constitution of India, 1950.
24
K. Industries Ltd v. Chief Inspector of Factories, 6 SCC (1996) 665.
25
State of Orissa v. Radheysham Meher, AIR 1995 SC 85.
26
Ibrahim v. R.T.A., AIR 1953 SC 79.
27
State of Maharashtra v. Himmatbhai, AIR 1970 SC 1157.
28
Municipal Corpn v. Jan Md., AIR 1986 SC 1205.
29
Krishna Sugar Mills v. Union of India, AIR 1959 SC 1124.
30
Chintamanrao v. State of M.P., AIR 1951 SC 118.
31
Krishna Sugar Mills v. Union of India, AIR 1959 SC 1124.
rules or provision.32 The rationale is that reasonable restriction includes prohibition, having

regard to the exceptional circumstances calling for restriction,33 namely, the patent and

widespread danger to the community.34 Thus the consumption of junk food if continued will

cause inherent danger to the health of youth. Thus, the Council humbly submits that there is no

violation of any Fundamental Right on account of the restrictions imposed by the Government

as the same qualifies as a reasonable restriction under the purview of Article 19(2) - 19(6) of

the Constitution.

32
Sivarajan v. Union of India, AIR 1959 SC 556.
33
Cooverjee B. Bharucha v. Excise Commissioner, AIR 1954 SC 220.
34
Southern Pharmaceuticals v. State of Kerala, AIR 1981 SC 1863.